Focusing on 'Treatment as Prevention' for HIV Criminal Law Reform Fails Marginalized Populations

"There is increasing agreement that risk of HIV transmission from a person living with HIV (PLHIV) who is on antiretroviral therapy (ART) and has a continuously undetectable viral load is effectively zero."

This statement has been widely acknowledged by people living with HIV and advocates fighting HIV criminalization laws. However, in many states, the legal system has yet to catch up and continues to criminalize and imprison people for years, if not decades, under outdated laws. According to the Centers for Disease Control and Prevention (CDC), 24 states have laws requiring people living with HIV to disclose their status to sexual partners, 14 states have laws requiring them to disclose to needle-sharing partners, and 25 states have laws criminalizing "one or more behaviors that pose a low or negligible risk for HIV transmission."

In pushing for the repeal -- or at least the drastic reform -- of these HIV criminalization laws, advocates have pointed to the strides made in modern medicine. The CDC has agreed with this approach, noting, "The majority of laws identified ... were passed before studies showed that ART reduces HIV transmission risk[,] and most do not account for HIV prevention measures that reduce transmission risk, such as condom use, ART, or pre-exposure prophylaxis (PrEP)." Therefore, the CDC has "encouraged states with HIV-specific criminal laws to use its findings to re-examine state laws, assess the laws' alignment with current evidence regarding HIV transmission risk, and consider whether the laws are the best vehicle by which to achieve their intended purposes."

But does reliance on modern medicine merely continue the exclusion and condemnation of those with the least access to health care? And, given the Congress's efforts to repeal the Affordable Care Act (ACA), what might such reliance mean for those most at risk for losing access to health care?

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In July, 10 organizations came out with the Consensus Statement on HIV "Treatment as Prevention" in Criminal Law Reform. The statement recognizes the strides made by modern medicine but notes that relying solely on prevention through medical treatment overlooks the two underlying problems with HIV criminalization laws: First, current laws focus on a person's failure to disclose their HIV status rather than their intention to do harm. Second, current laws treat any risk of HIV infection as the equivalent of murder or manslaughter and impose severe sentences.

Relying medical tools as the basis for reforming HIV criminalization laws overlooks these laws' underlying problems. If prevention through receiving medical treatment and having an undetectable viral load becomes the basis for reform, prosecutors and the legal system will then have another tool in their arsenal: a person's inability or failure to access health care. It could also lead policymakers and prosecutors to argue that people living with HIV who are not virally suppressed pose a significant risk to their sexual partners. This ignores the CDC's findings that, even without treatment and condom use during receptive anal sex (the sex act most likely to result in HIV transmission), the transmission rate is less than 2%, or two in 100.

Furthermore, the focus on viral load and medical treatment detracts from the fact that HIV is now a chronic, manageable disease, similar to type 2 diabetes. "To treat it otherwise by making its transmission a felony with a long sentence reinforces what likely is the most serious source of HIV stigma, discrimination, and violence against PLHIV," declares the Consensus Statement.

Finally, focusing solely on medical advances continues to ignore the ways in which criminalization targets people who are most marginalized, specifically people of color who lack the resources to access continued treatment. "You cannot talk about one form of criminalization without talking about the others," Deon Haywood, director of Women With a Vision, told TheBody.com in January 2016. "You can't talk about HIV criminalization without talking about race, without talking about access and without talking about privilege."

In Louisiana, where Women With a Vision organizes with low-income African-American women, many of whom are living with HIV, a focus on medical advances doesn't address the ways in which HIV criminalization has been used a prosecutorial tool. Nia Weeks, Women With a Vision's policy director, pointed out to TheBody.com that the New Orleans district attorney threatens to upcharge (or increase the criminal charges) or to use the state's habitual offender laws to coerce people to plead guilty. Weeks, who previously worked as a public defender, described one client who was charged with domestic abuse and battery, including the accusation of a bite. The prosecutor's office threatened to add the charge of intentional exposure to HIV if Weeks' client did not plead guilty to the domestic abuse and battery charge. It did not matter that the man that she allegedly bit, her soon-to-be ex-husband, was also HIV positive. What mattered was that, under Louisiana law, if she were convicted of intentional exposure, she would face not only a 10-year prison sentence but also placement for life on the state's sex offender registry. HIV criminalization is "part of a whole system of forcing pleas to not harm yourself more," stated Weeks.

Furthermore, a focus on treatment and undetectable viral loads fails to address people's precarious access to health care, access that may be further undercut as the GOP pushes to repeal or undermine the ACA.

Even with the ACA, Weeks noted, "people can very easily find themselves off the health care system in the blink of an eye." All it takes is a missed bus or a family emergency that results in a missed Medicaid appointment, she explained. That missed appointment leads to the loss of Medicaid, leading to the loss of access to medications. In other words, health care access is already precarious. Cutting the ACA means that even fewer people will have access to the health care and medications that could make their viral loads undetectable.

"The ultimate goal is decriminalization, period," declared Weeks. "There's all the pieces that are helpful and steps forward, but it won't be done until HIV is decriminalized."

Victoria Law is a freelance writer and editor. Her work focuses on the intersections of incarceration, gender and resistance. She is the author of Resistance Behind Bars: The Struggles of Incarcerated Women. You can find more of her work at Victorialaw.net.

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